Defending liberties in high-tech world

Despite its many legal victories, critics charge the EFF with idealism

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Shari Steele, Electronic Frontier Foundation's executive director, left, and Kevin Bankston, staff attorney, are photographed at their office building in San Francisco. Envisioned as a defender of cyberliberties, the Electronic Frontier Foundation first took on the U.S. Secret Service over raids and seizures of computer equipment from a small games company called Steve Jackson Games.

SAN FRANCISCO — In March 1990, when few people had even heard of the Internet, U.S. Secret Service agents raided the Texas offices of a small board-game maker, seizing computer equipment and reading customers' e-mail stored on one machine. A group of online pioneers already worried about how the nation's laws were being applied to new technologies became even more fearful and decided to intervene.

And thus the Electronic Frontier Foundation was born — 16 years ago this week — taking on the Secret Service as its first case, one the EFF ultimately won when a judge agreed that the government had no right to read the e-mails or keep the equipment.

Today, after expanding into such areas as intellectual property and moving its headquarters twice along with its focus, the EFF is re-emphasizing its roots of trying to limit government surveillance of electronic communications, while keeping a lookout for emerging threats even as the Internet and digital technologies become mainstream.

In one of its highest-profile lawsuits to date, the EFF has accused AT&T Inc. of illegally cooperating with the National Security Agency to make phone and Internet communications available without warrants.

"It's quite possibly the most important privacy and free speech issue in the 21st century," said Kevin Bankston, an EFF staff attorney formerly with the American Civil Liberties Union. "We are trying to force the government to follow the law. We are trying to force the phone company to follow the law."

Shari Steele, the EFF's executive director, described the NSA program as "a place where technology and civil liberties collide in a big way."

The EFF was born July 10, 1990, as three men who met on the online community The WELL grew concerned that the ACLU and other traditional civil-liberties organizations didn't understand technology enough to question government actions like the Secret Service raid.

"It's difficult at this stage of the game to remember how few people even knew the Internet existed," said John Perry Barlow, a co-founder who used to write lyrics for the Grateful Dead. "It wasn't on their radar."

Even the World Wide Web wouldn't be invented for another five months.

Software pioneer Mitch Kapor, another co-founder, said that even when a group like the ACLU had the will, it didn't have the technical know-how to consider how basic, constitutional rights would even apply to the online world.

"Nobody had done the thinking," he said. "The questions hadn't been raised."

So from Day One, the EFF sought to become a high-tech ACLU and ensure that offline rights indeed transferred to emerging technologies.

Early on, the EFF took on government efforts to treat encryption technology as military weapons rather than speech, and later it joined other groups in successfully challenging _ on free-speech grounds _ congressional efforts to block online pornography.

The group also defended developers of file-sharing software, arguing that technology with legal uses shouldn't be barred even if others can use it to commit crimes, such as trading copyright music and movies.

There have been internal tensions along the way as the organization left Cambridge, Mass., for Washington, D.C., in 1993. The EFF started trying to influence legislation, and some in the organization grew uncomfortable with the need to compromise in that setting.

So the EFF moved once more, to San Francisco in 1995, and after dabbling with corporate issues like privacy policies and spinning off the TRUSTe privacy-certification program for businesses as a standalone organization, it redirected its energies to litigation.

Most of the EFF's 25 employees now work in a former sewing factory and paint warehouse in San Francisco's gritty Mission District, its cubicle-less offices having the makeshift, open feel of a political campaign rather than a law firm. Attorneys walk around sans ties and suits and hold impromptu meetings on colorful couches. Chewed up tennis balls scattered throughout provide evidence of a dog-friendly environment.

Although the EFF was among the few tech-focused groups when it formed, many other organizations now complement it.

The Center for Democracy and Technology, or CDT, formed by former EFF staffers in the rift over its role in lobbying, is housed in Washington and tackles issues before Congress and federal agencies.

The ACLU also became active in technology and led the online pornography lawsuits. In challenging the Bush administration's domestic-surveillance program, the ACLU sued the government, while the EFF sued AT&T.

The EFF's nonlitigation projects include ongoing funding for the Tor system for anonymous online communications and research last year exposing tracking codes embedded in color laser printers. Its staffers also testify at public hearings; one took part in an electronic-voting task force that released a report on security in late June.

But the bulk of the work is legal — 60 percent to 70 percent, Steele estimated.

That focus has left the group open to criticisms that by refusing to play the Washington game of compromising, its views are idealistic and sometimes extremist.

"They are the lawyers for the open vision of the Internet," said Peter Swire, the Clinton administration privacy counselor who sometimes tussled with the EFF. "They are the Left Coast advocacy group."

Companies targeted by the EFF say the group appears overly skeptical of intellectual property and the free market.

Paul Ryan, whose Acacia Research Corp. the EFF cited for "crimes against the public domain" for claiming patents on streaming media, said the EFF ignores the fact that without patent protection, companies have less incentive to innovate.

The EFF also has faced criticisms that, despite its many victories, its losses can establish legal precedents that make subsequent cases harder to win. In the file-sharing case, the EFF won twice in lower courts, but the Supreme Court narrowed a 1984 ruling that technology shouldn't automatically be barred because it had illegal uses.

"The decision to expend energy on cases and in some sense to work to get them to the Supreme Court is to really gamble with the outcome," said Danny Weitzner, who left EFF in 1994 to help form the rival CDT.

He said the EFF should have waited for a better case, so that the high court wouldn't be "deciding about whether kids could steal music."

EFF attorneys say that they can't always wait for the perfect case and could at least prevent a worse ruling.

"People will always second guess what you do," said Lee Tien, an EFF attorney active in the AT&T lawsuit. "If you're going to be afraid to complain about something wrong, you deserve to have wrongdoing done to you."

The EFF continues to tackle issues like anonymity, electronic voting, patents and copyright, but the Sept. 11 attacks nearly five years ago have forced the EFF to spend more time on surveillance.

It has sought to require more evidence before law enforcement can legally track people's locations by their cell phones, and in January the group sued AT&T, saying the San Antonio-based company violated U.S. law and the privacy of its customers. AT&T and NSA officials declined comment for this article.

The AT&T lawsuit already has generate grassroots momentum for the group, which gets the bulk of its $2.5 million budget from individuals. About 1,400 joined the EFF and sent in contributions after the EFF sent a mid-May appeal that cited the AT&T case. The group now has about 11,500 dues-paying members.

Basic online rights are more established today than when the EFF formed, but EFF legal director Cindy Cohn said there's no shortage of cutting-edge cases.

"We're not near the end of the digital revolution in terms of new technology being rolled out," she said. "Just because some stuff is mainstream, there's still a lot of stuff coming down the road to raise new issues or raise old issues over again in slightly new ways."

The EFF, she said, remains committed to fighting the battles "nobody's talking about yet."

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